Summary
In Thompson v. Thompson, 120 S.C. 230, 112 S.E. 925, it was held, quoting syllabus, "In an action between husband and wife, where both parties claimed the ownership of realty, the trial judge did not abuse his discretion in refusing to appoint a receiver."
Summary of this case from Turner et al. v. Byars et alOpinion
10898
July 5, 1922.
Before RICE, J., and DeVORE, J., Barnwell. Affirmed.
Action by Willie Wolfe Thompson against C.R. Thompson and W.C. Boyd. From orders refusing a temporary injunction and the appointment of a receiver the plaintiff appeals.
Messrs. J.O. Patterson, Jr. and J.A. Kennedy, for appellant, cite: Temporary injunction: Code Proc. 1912, Sec. 270; 92 S.C. 347; 69 S.C. 156; 92 S.C. 418; 75 S.C. 220; 95 S.C. 248; 89 S.C. 160; 87 S.C. 569; 74 S.C. 178; 4 Pom. Eq. Jur. (3rd Ed.), Sec. 1138; 18 A. E. Enc. L., 364; 96 S.C. 290; 107 S.C. 404.
Messrs. Brown Bush, for respondents, cite: Injunction not proper to change possession of property: 75 S.C. 233; 22 Cyc., 828; 27 S.C. 408; 94 Am. St. Rep., 903; 14 R.C.L., 450. Or to prevent an act already done: 78 S.C. 222. As to Receiver: 19 S.C. 293; 34 Cyc., 51; 23 R.C. L., 29.
July 5, 1922. The opinion of the Court was delivered by
The plaintiff alleges that about seven years ago she married the defendant C.R. Thompson; that in 1917 she and her husband purchased a tract of land containing about 39 acres; that the plaintiff made some cash payment thereon; that her husband had paid some interest; that the family lived on the place until the summer of 1921; that her husband had not paid anything on the principal; that she was not willing to make further payments on the mortgage debt, unless her husband would convey to her his one-half interest, and that in October, 1920, her said husband made the required deed; that in the summer of 1921 she left the premises; that her husband had rented the premises to his codefendant, W.C. Boyd, while she, the plaintiff, had rented the premises to one P.B. Porter — and asks the Court to enjoin the defendants from interfering with her possession.
A preliminary restraining order was made, and a rule to show cause why a preliminary injunction should not issue. The defendant, in his return to the rule, stated that the deed was fraudulent, and that they had bought the place for a family residence, and he had built houses, etc., on the place, and made other improvements to fit the place for a family residence. Judge Rice heard the motion and refused the injunction.
I. This is the subject of the first appeal. It is perfectly clear that the plaintiff left the defendant Thompson in possession. It is also clear that a temporary injunction cannot be used to transfer the possession from the defendant to the plaintiff. This was not error.
II. The plaintiff then applied to Judge De Vore for the appointment of a receiver. Judge De Vore refused the motion in the exercise of his discretion, and we do not see that he abused his discretion.
The orders appealed from are affirmed.